Today in democratic countries we face infinitely greater threats than from those promoting the insane proposition that the Holocaust was a fantasy. Prosecuting the deniers in court transforms them into victims and diverts us from confronting anti-Semitism, which is still the primary challenge facing us.

Rethinking prosecution of Holocaust denial

November 4, 2008

It may now be timely to rethink the merits of criminalizing Holocaust denial.

The issue recently made headlines when German-born Australian Frederic Toben was arrested in transit at Heathrow airport and detained until the British courts decide whether he is to be extradited to Germany to face prosecution as a Holocaust denier. Toben is a veteran in this field, having participated in Ahmadinejad’s Holocaust “conference” and having already served seven months in a German prison as a denier. Although Australia has no statutes outlawing Holocaust denial, the courts there have ordered Toben to stop publishing anti-Semitic material on his website such as the description of the Holocaust as “the world’s filthiest blood libel” because it breaches the Racial Discrimination Act. Toben has refused to adhere to the court order, and if found in contempt is likely to face severe penalties on his return to Australia.

I don’t support unfettered freedom of speech, and have always favored legislation designed to prosecute those inciting racial or religious hatred. There is no such thing as “innocent” Holocaust denial. Even if it purports to be a historical review, it is simply a vile body of lies created with the object of accusing the Jews of fabricating a story to exploit sympathy and thereby obtain favored treatment.

But in drawing the fine distinction between incitement to hatred and Holocaust revisionism, I now think that employing measures involving police action or criminal prosecution to deal with Holocaust deniers does more harm than good. There is of course the exception: in Germany and Austria, where this most obscene atrocity was incubated, criminalizing Holocaust deniers is entirely justified.

Fortunately, Holocaust deniers in civilized society are virtually all regarded as cranks and charlatans, probably because the Holocaust is the most comprehensively documented genocide of all times.

The other factor is that the level of Holocaust memorialization throughout the democratic world has transcended our greatest expectations. In the immediate post-war decades, Holocaust memorials were almost all undertaken by Jews mourning their murdered kinsmen. However today, virtually every democratic government has institutionalized Holocaust commemoration, and in many cases invested major resources to incorporate Holocaust studies into their schools’ curricula. Some have even set aside an annual Holocaust commemoration day. Museums, the movie industry and the media relate to the subject continuously. There is no doubt that despite the frenzied efforts of anti-Semites, in Western countries efforts are going forward to ensure that youngsters are made aware of the Nazi objective, and the need to be prepared to confront new genocidal initiatives.

As a consequence, Holocaust denial in the democratic world has effectively been marginalized. In fact, the more sophisticated Western anti-Semites tend to distance themselves from Holocaust deniers, realizing that such association only discredits them. Beyond his own Islamic arena, even President Mahmoud Ahmadinejad undermined his campaign to delegitimize Israel when he began challenging the veracity of the Holocaust. Today it is far more effective to try and simply distort, trivialize or minimize the extent of the Holocaust rather than flatly denying it.

Holocaust awareness has reached such levels that many of us wish that at least some of the concern and effort invested in commemorating the murder of our six million kinsmen could be extended to the six million living in the Jewish state who today face the same hatred. It is especially painful to observe that many of those in the Western world who claim to be profoundly affected by the Holocaust are at the forefront of activities designed to demonize Israel.

It is even more bizarre that the most determined foes of Israel and the Jewish people employ Holocaust inversion (rather than denial) as a rationale for undermining the Jewish state. Again and again we witness our enemies accusing Israelis of behaving like Nazis. The Arabs are the greatest purveyors of this libel, and it is highlighted in the books, movies, media and caricatures which circulate freely throughout many “moderate” Islamic countries like Egypt as well as the radical states.

What makes this even more bizarre is that the same Islamic countries that have absorbed Holocaust denial as a central component of their hatred of Jews now have the gall to cite Holocaust criminalization as a precedent for seeking to make any disapproval of Islam, Islamic practice or even Sharia law grounds for criminal prosecution. Resolutions to this effect have already been passed by the UN General Assembly.

These developments emphasize the need to rethink the prosecution of Holocaust deniers. By criminalizing those promoting such views, we not only transform them into martyrs posing as champions of free speech, but also enable them to insinuate that “the Jews” are preventing them from demonstrating the truth of their warped and evil doctrines.

Aside from the abundance of evidence refuting Holocaust denial, the climate today in the democratic world enables us to dismiss anyone who promotes this noxious falsification. Besides, there is no question that the media and educational facilities are far more effective in neutralizing these pathological cranks than the police and courts.

This was exemplified in the extraordinary 1996 libel suit in London against Deborah Lipstadt by Holocaust denier David Irving. Lipstadt won the case in a stunning defense and utterly discredited Irving, who was exposed as an incompetent academic and raving anti-Semite. This contrasted to the outcome of his criminal prosecution in Vienna, where he was jailed but where the media subsequently glorified him as a martyr on behalf of free speech.

Today in democratic countries we face infinitely greater threats than from those promoting the insane proposition that the Holocaust was a fantasy. Prosecuting the deniers in court transforms them into victims and diverts us from confronting anti-Semitism, which is still the primary challenge facing us.